Opinion
No. 353221
05-20-2021
PAMELA TUDOR, Plaintiff-Appellant, v. MACOMB COUNTY and BARBARA CASKEY, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2019-000524-CD Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ. PER CURIAM.
Plaintiff Pamela Tudor appeals by right the trial court's opinion and order granting summary disposition in favor of defendants Macomb County and Barbara Caskey under MCR 2.116(C)(10). Tudor was employed by the County as a pretrial specialist in community corrections before her resignation, and Caskey was her supervisor. Tudor commenced this action under the Elliott-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq., alleging age discrimination and retaliation claims and arguing that she had been constructively discharged. The trial court concluded that Tudor failed to submit documentary evidence sufficient to create a genuine issue of material fact with respect to establishing an "adverse employment action" as to both claims except in regard to the County's decision not to offer Tudor a job promotion when filling a newly-created position. The trial court nonetheless disposed of the age discrimination and retaliation causes of action in full on the basis that with respect to this sole adverse employment action, i.e., the denial of a job promotion, defendants presented legitimate, nondiscriminatory reasons why the promotion went to a younger person, and Tudor failed to submit any evidence showing that the reasons were a pretext for discrimination and retaliation. We reverse the summary dismissal of the age discrimination and retaliation claims and remand for further proceedings.
I. BACKGROUND AND PROCEDURAL HISTORY
A. THE COMPLAINT
In her complaint filed on February 6, 2019, Tudor, who was born in 1967, alleged that she began employment with the County in October 2003, that for the first 11 years of that employment she had no issues at work, no contact with human resources, and that at all times Tudor performed her job duties in a competent manner and conducted herself in accord with County policies. Tudor asserted that Caskey was substantially younger than Tudor. She claimed that Caskey was in management and had been Tudor's direct supervisor for the last several years. Tudor further alleged that when Caskey became Tudor's supervisor, Caskey "made it immediately known that she preferred to work within the company of younger persons."
Caskey, Director of Community Corrections, was born in 1978.
Tudor contended that Caskey engaged in several acts and made multiple comments that constituted "age-based harassment" directed at Tudor. These included the following:
a. Defendant Caskey formulated a new position in the department, and gave the job to a recently hired substantially younger person ("Hartz") [who held] . . . the same position as Plaintiff, even though Plaintiff applied and was clearly more qualified than Hartz;
b. Hartz, with impunity under the support of Defendant Caskey, began to openly belittle and harass Plaintiff;
c. Defendant Caskey transferred Plaintiff's workspace to an isolated office that was at one time a closet;
d. Defendant Caskey put Plaintiff on a performance improvement plan [PIP], and then did not follow up, as required by internal policy, by meeting with Plaintiff at regular intervals to discuss the PIP, whereas Defendant Caskey paid close attention to the improvement of performance of younger similarly-situated co-employees of Plaintiff;
e. Defendant Caskey allowed Hartz to take over the interns that had been . . . shared by the pretrial staff, to the detriment of Plaintiff's ability to be productive;
f. Defendant Caskey removed long-held duties from Plaintiff and gave them to Hartz, and excluded Plaintiff from the information arising from those duties, which information Plaintiff needed to do her job properly;
g. Defendant Caskey would criticize Plaintiff and scrutinize Plaintiff's comings and goings, but would allow Hartz to be late and lax with her comings and goings in the office;
h. On one occasion, Defendant Caskey yelled at, berated and disciplined Plaintiff in a closed office for 45 minutes in front of Hartz;
i. On another occasion a judge visited Plaintiff's workspace, and Defendant Caskey blatantly did not introduce Plaintiff to the judge but instead, right in front of Plaintiff, introduced the judge to Plaintiff's co-worker "Elizabeth,"
who was in her 20's, and had Elizabeth take the judge in the jail for a pretrial/bond recommendation interview and to discuss the program briefly with him. Elizabeth was a new employee who had no certification in pretrial.
Tudor maintained that she complained several times about the harassment from Hartz and Caskey, only to be rebuffed and retaliated against by Caskey and the County's Human Resources Department (HR). Tudor alleged that on March 22, 2017, she lodged a complaint about Hartz to HR and that the very next day, March 23rd, Caskey went to Tudor's office with a command sergeant and informed Tudor that she was being suspended, absent any explanation of the reasons for the suspension. According to Tudor, Caskey had Tudor escorted out of the office by the sergeant, which Tudor found humiliating. Tudor additionally asserted that one week after the suspension, Caskey, upon completing her investigation, sent Tudor a job-performance report describing 18 instances of purported errors, deficiencies, and violations of policies and procedures with respect to Tudor's files and record-keeping. Tudor demanded a Loudermill hearing to protest the suspension and job-performance report. Tudor claimed that she was subsequently informed by her attorney that he had learned that Tudor would have an inadequate amount of time to speak and defend herself at the hearing and that she was supposedly going to be terminated regardless of the evidence presented. Tudor alleged that in light of these circumstances, as well as the history of a hostile work environment and the age-based discrimination and harassment, she submitted a letter of resignation on May 12, 2017—no Loudermill hearing was conducted. Tudor believed that she was forced to resign "out of the thought that she had no choice." Tudor further alleged, upon information and belief, that she was "replaced by a substantially younger person."
As developed later in the documentary evidence, Tudor was placed on paid administrative leave by Caskey after a probation supervisor complained to Caskey about Tudor's alleged failure to respond to an inquiry about a case file. This resulted in Caskey's launching an investigation into Tudor's overall job performance.
See Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985). In Loudermill, the United States Supreme Court held that due process requires a pre-termination opportunity to respond to allegations made against public employees. Id. at 545-546. "PostLoudermill decisions have supported the Loudermill requirements by holding that due process is satisfied if a discharged employee was given an opportunity to respond before termination, and posttermination procedures are available." Tomiak v Hamtramck Sch Dist, 426 Mich 678, 701; 397 NW2d 770 (1986). The purpose of a Loudermill hearing "is not to definitively resolve the propriety of the discharge [but to provide] an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Plymouth-Canton Community Sch v State Tenure Comm, 435 Mich 76, 78-79; 457 NW2d 656 (1990) (quotation marks, citation, and ellipses omitted; brackets in original).
Tudor alleged two counts in the complaint. In Count I, Tudor accused defendants of age discrimination under the CRA on the basis of the allegations set forth above. In Count II of the complaint, Tudor contended that she had been retaliated against for opposing violations of the CRA. Tudor alleged that the grounds listed in the job-performance report were false and a pretext for illegal retaliation.
B. MOTION FOR SUMMARY DISPOSITION
After the parties engaged in extensive discovery, defendants moved for summary disposition under MCR 2.116(C)(10). Defendants argued that Tudor had voluntarily quit her job with the County, that she failed to present any evidence to show that age was a factor in Caskey's decision to investigate complaints concerning Tudor's failure to properly perform her employment obligations, and that Tudor failed to present any evidence demonstrating that the actions defendants took constituted material adverse employment actions or that the proffered reasons for taking the actions were a pretext for discrimination and retaliation. Defendants contended that there were legitimate, nondiscriminatory reasons for Caskey's issuance of the job-performance report which Tudor failed to rebut. Defendants also maintained that Tudor was not constructively discharged. In sum, defendants argued that the claims of age discrimination and retaliation failed as a matter of law.
Tudor responded that her proofs established a prima facie case of age discrimination and that there was evidence of pretext; therefore, her claims should be decided by a jury. Tudor also contended that she had been constructively discharged. Finally, Tudor asserted that she presented sufficient proofs to establish a genuine issue of material fact regarding retaliation. Relevant documentary evidence will be discussed in the analysis portion of this opinion.
C. THE TRIAL COURT'S RULING
On November 4, 2019, a hearing was held on defendants' motion for summary disposition. The trial court took the matter under advisement, giving the parties an additional 14 days to file supplemental briefs if they wished and promising a written opinion at some point thereafter. Tudor alone filed a supplemental brief. Attached to that brief was her affidavit in which she specifically addressed each of the 18 assertions of errors, deficiencies, and policy and procedural violations listed in the job-performance report. In Tudor's affidavit, she averred, as a summation, that with one exception—sending a bond status to the wrong Judge Servitto—the job-performance report was "full of erroneous misstatements of fact and misstatements of policy and procedure."
On January 7, 2020, the trial court issued a written opinion and order granting defendants' motion for summary disposition. The trial court began its opinion by reviewing the allegations Tudor made in her complaint. The trial court next set forth the standard of review, the principles governing summary disposition under MCR 2.116(C)(10), a summarization of the parties' arguments, and a discussion of the CRA and caselaw construing the CRA relative to discrimination and retaliation.
The trial court then observed "that the only element in dispute as to Tudor's prima facie claim for both age discrimination and retaliation is whether Tudor suffered an adverse employment action." The trial court examined all of the instances or occurrences that Tudor claimed represented adverse employment actions, including the suspension and claimed constructive discharge. For a variety of reasons, some of which we discuss herein, the court rejected all but one of the occurrences, finding as a matter of law that they simply did not amount to adverse employment actions. The trial court did conclude that the decision to give a new pretrial manager position to the younger Hartz in 2016 instead of Tudor qualified as an adverse employment action. The court elaborated:
Here, there is no dispute that Tudor and a younger employee, Hartz, both had the certification required for the new manager position, but after the interview process, Hartz received the promotion and not Tudor. Tudor has therefore sufficiently demonstrated an adverse employment action and a prima facie case for age discrimination, and the failure to promote Tudor to this position was presumptively discriminatory.
The trial court concluded, however, that Tudor's reliance on the lost job promotion did not save Tudor's case. The court explained:
Although the evidence is not clear and unequivocal, when viewing it as a whole in the light most favorable to Tudor, reasonable minds could differ regarding whether Caskey treated Tudor differently and whether that difference was based on her age. But the only adverse employment action that Tudor has established in this case is that she was not promoted to a newly created management position in favor of a younger employee. But Caskey and [County HR consultant] Bruzzese provided evidence of a hiring process that does not consider age or seniority, and they both attested that the procedures, whereby the candidate with the highest score is offered the position, were followed. Thus, defendants have successfully articulated a legitimate, nondiscriminatory reason for the adverse action (i.e., Hartz had the highest score based on the hiring criteria), which overcomes and disposes of this presumption. Tudor, meanwhile, has failed to present any evidence from which the Court could determine that she was as qualified or more qualified than Hartz. For example, there is documentary evidence that Tudor had job performance deficiencies under a previous director as well as under Caskey, while there is no evidence of any job performance issues for Hartz. And although Tudor questions the timing of Hartz's certification, there is no dispute that both Tudor and Hartz had the requisite pretrial specialist certification at the time the employment decision was made. Finally, it is undisputed that Tudor complained to Bruzzese about Caskey several months before Bruzzese and Caskey conducted the interviews for the pretrial manager position. While Tudor alleges that she complained about harassment based on her age, even viewing that evidence in the light most favorable to Tudor, there is no evidence that would support an inference that she was denied the promotion on the basis of her complaint to HR. The fact that the HR complaint preceded the interview is not sufficient to survive a motion for summary disposition in this case. Tudor's proofs simply cannot support a reasonable inference that Hartz's higher score was actually a pretext for discriminatory animus on the part of defendants.
We note the opening sentence to the above-quoted passage in which the trial court appeared to indicate that summary disposition would not be appropriate in regard to the other adverse-employment-action claims if indeed they had actually constituted adverse employment actions. We next examine the reasons the trial court gave for concluding that some of the other occurrences alleged by Tudor did not constitute adverse employment actions. We shall limit the discussion to those instances relevant to Tudor's arguments on appeal.
The trial court spoke at some length about the events that transpired on March 22, 2017, when Tudor contacted Bruzzese in HR complaining that Caskey was discriminating against and bullying Tudor, and on March 23, 2017, when Caskey placed Tudor on paid administrative leave after Caskey received a complaint from a probation supervisor about Tudor's performance in monitoring a criminal case and failing to respond to an inquiry about the case. The trial court cited documentary evidence revealing that Bruzzese had phoned Caskey on March 22nd and talked about some of Tudor's complaints. The trial court then discussed Caskey's investigation, which led to the job-performance report identifying 18 alleged errors and oversights. The court also noted that Tudor asserted that HR had informed her attorney that only 30 minutes would be allotted at the Loudermill hearing to addressing Caskey's allegations in her job-performance report and that counsel believed that this was not adequate time to fully respond to the accusations. The trial court indicated that Tudor's attorney was granted one adjournment of the Loudermill hearing, but a second adjournment request was denied, and that Tudor did not believe that she would be given a fair opportunity to defend herself at the hearing, which, in part, led Tudor to resign instead of proceeding with the hearing. The trial court referred to Caskey's deposition testimony that she did not recommend terminating Tudor, and the court also mentioned Bruzzese's assertion that the outcome of the hearing had not been predetermined.
The trial court then turned to the issue of whether there had been an adverse employment action, ruling as follows:
Here, Tudor was placed on paid administrative leave pending the result of her Loudermill hearing. As discussed above, a Loudermill hearing is not disciplinary in nature, and it anticipates the possibility that the allegations may be unsubstantiated and that no disciplinary action may result. And although Caskey issued written reprimands to Tudor, written disciplinary action, without evidence that it led to materially adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse employment action. [Emphasis added.]We note, and Tudor emphasizes, that contrary to the trial court's observation, she had indeed been suspended. It does appear that the court may have been talking about a suspension arising out of the job-performance report or out of a Loudermill hearing had one taken place; Tudor's suspension purportedly resulted from the complaint to Caskey by the probation supervisor.
The trial court next entertained Tudor's contention that she had been constructively discharged. After briefly citing the caselaw on constructive discharge, the court stated and ruled:
[T]here was insufficient evidence to show that Caskey or the County made Tudor's working conditions so intolerable or so difficult or unpleasant that a reasonable person in Tudor's position would have felt compelled to resign. Tudor has failed to present any documentary evidence supporting [her] attorney['s] . . . allegation that the Loudermill hearing was predetermined or that she would not be
provided, as she had at [a] previous [Loudermill] hearing,[] a full and fair opportunity to be heard. To the contrary, the evidence supports the conclusion that defendants did not desire termination. The alleged bullying or harassment in this case involved Caskey's apparently valid criticisms of Tudor's work performance, which does not support constructive discharge or other adverse employment action . . . .
In the summer of 2016, Tudor was issued and accepted a performance criticism following a Loudermill hearing.
Subsequently, Tudor moved for reconsideration. She argued that the trial court's rejection of her constructive discharge claim totally ignored Tudor's affidavit challenging the allegations in Caskey's job-performance report. A second argument posed by Tudor in the motion for reconsideration concerned Tudor's attorney at the time of the scheduled Loudermill hearing, whom we will refer to as Tudor's Loudermill attorney, and requires us to first provide some context. In her response to defendants' motion for summary disposition, Tudor attached an affidavit by her Loudermill attorney, and he averred that he had telephoned HR "to request details and to discuss matters regarding the upcoming Loudermill hearing." Counsel further averred:
During the telephone conversation with the Macomb County human resources department, the human resources agent told me that in the Loudermill hearing Ms. Tudor was going to be given 30 minutes to respond to the allegations of poor performance she had received in a letter, and that no matter what happened in the Loudermill hearing, Ms. Tudor was likely to be fired from her job.
The affidavit, however, was unsigned. Tudor's attorney representing her in this litigation submitted his own affidavit in responding to the summary disposition motion. He averred that he had repeatedly attempted to contact Tudor's Loudermill attorney without success and that he was confident that the attorney would eventually sign the affidavit that had been prepared. Returning to the motion for reconsideration, Tudor now attached the executed affidavit by her Loudermill attorney, which contained language identical to that quoted above, except for the added caveat that counsel's averments were "to the best of [his] recollection and belief." In the motion for reconsideration, Tudor requested that the trial court consider the affidavit, which would provide evidentiary support for Tudor's constructive discharge contention.
The trial court issued a short, written opinion and order denying the motion. The court took into consideration the affidavit by Tudor's Loudermill attorney but found that it was too vague to create a genuine issue of material fact because the HR person who allegedly spoke to counsel was not identified in the affidavit. The trial court also determined that even assuming that the Loudermill hearing would have been limited to 30 minutes, the evidence demonstrated that Tudor would have been able to supplement her oral presentation with a written response comparable to her affidavit challenging the job-performance report. The trial court concluded that Tudor was presenting the same facts and raising the same issues that the court had already ruled upon and that there was no palpable error by which the parties and the court had been misled. Tudor then filed the instant appeal.
II. ANALYSIS
A. STANDARD OF REVIEW AND PRINCIPLES OF SUMMARY DISPOSITION
"This Court reviews de novo a trial court's decision on a motion for summary disposition." Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). MCR 2.116(C)(10) provides that summary disposition is appropriate when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for a party's action. Pioneer State Mut Ins Co v Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013). "Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required . . . when judgment is sought based on subrule (C)(10)," MCR 2.116(G)(3)(b), and such evidence, along with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR 2.116(G)(5). "A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact." Pioneer State, 301 Mich App at 377. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). Pioneer State, 301 Mich App at 377. "Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party." Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). A court may only consider substantively admissible evidence actually proffered by the parties when ruling on the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
MCR 2.116(G)(4) provides:
A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.
"[T]he rule is well established that a moving party may be entitled to summary disposition as a result of the nonmoving party's failure to produce evidence sufficient to demonstrate an essential element of its claim." Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 9; 890 NW2d 344 (2016).
B. GOVERNING LEGAL PRINCIPLES
1. AGE DISCRIMINATION
An employer shall not "[f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status." MCL 37.2202(1)(a) (emphasis added).
In discrimination cases, when a plaintiff is able to produce direct evidence of, for example, age bias, "the plaintiff can go forward and prove unlawful discrimination in the same manner as a plaintiff would prove any other case." Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001) (addressing a claim of racial discrimination). Direct evidence is evidence which, if believed, requires the conclusion that unlawful discrimination played at least a motivating factor with respect to the employer's adverse action. Id. When a plaintiff has no direct evidence of discrimination, the plaintiff must proceed through the steps outlined in McDonnell Douglas Corp v Green, 411 US 792, 802-803; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Hazle, 464 Mich at 462. "The McDonnell Douglas approach allows a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination." Hazle, 464 Mich at 462 (quotation marks omitted).
With regard to establishing a prima facie case of discrimination, a plaintiff is required to present evidence that (1) she belonged to a protected class; (2) she suffered an adverse employment action; (3) she was qualified for her position or other relevant positions, and (4) she suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Id. at 463. A presumption of discrimination arises when a plaintiff adequately establishes a prima facie case. Id. But "the fact that a plaintiff has established a prima facie case of discrimination under McDonnell Douglas does not necessarily preclude summary disposition in the defendant's favor." Id. at 463-464. A prima facie case under McDonnell Douglas does not describe the plaintiff's burden of production, but merely establishes a rebuttable presumption. Id. at 464. Therefore, "once a plaintiff establishes a prima facie case of discrimination, the defendant has the opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the presumption created by the plaintiff's prima facie case." Id. Our Supreme Court in Hazle, id. at 464-466, further explained the analytical process, stating:
The articulation requirement means that the defendant has the burden of producing evidence that its employment actions were taken for a legitimate, nondiscriminatory reason. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel. If the employer makes such an articulation, the presumption created by the McDonnell Douglas prima facie case drops away.
At that point, in order to survive a motion for summary disposition, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff's favor, is sufficient to permit a reasonable trier of fact to conclude that
discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. . . . [A] plaintiff must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was a pretext for [unlawful] discrimination.
The inquiry at this final stage of the McDonnell Douglas framework is exactly the same as the ultimate factual inquiry made by the jury: whether consideration of a protected characteristic was a motivating factor, namely, whether it made a difference in the contested employment decision. The only difference is that, for purposes of a motion for summary disposition or directed verdict, a plaintiff need only create a question of material fact upon which reasonable minds could differ regarding whether discrimination was a motivating factor in the employer's decision. [Citations and quotation marks omitted; second alteration in original.]
Establishing pretext or that discrimination was a motivating factor in an employer's decision can be accomplished by showing that the reasons for the decision had no basis in fact, that if there was a basis in fact, that the reasons were not the actual factors motivating the decision, or, if they were factors, by showing that they were jointly insufficient to justify the decision. Debano-Griffin v Lake Co, 493 Mich 167, 180; 828 NW2d 634 (2013). The soundness of an employer's business judgment, however, may not be questioned as a means of showing pretext. Id.
2. RETALIATION UNDER THE CRA
Under MCL 37.2701(a), a person shall not "[r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act." In Meyer v City of Center Line, 242 Mich App 560, 568-569; 619 NW2d 182 (2000), this Court set forth the elements of a CRA-based retaliation claim under MCL 37.2701(a), explaining:
To establish a prima facie case of retaliation under the Civil Rights Act, a plaintiff must show (1) that the plaintiff engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. [See also DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).]
To establish the element of causation, a plaintiff must show that his or her participation in protected activity identified in the CRA was a "significant factor" in the employer's adverse employment action, not simply that a causal link existed between the two. Barrett v Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001). "A causal connection can be established through circumstantial evidence, such as close temporal proximity between the protected activity and adverse actions, as long as the evidence would enable a reasonable factfinder to infer that an action had a discriminatory or retaliatory basis." Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241 (2004). With respect to establishing a causal connection, if there is direct evidence of retaliation, a "plaintiff can go forward and prove unlawful [retaliation] in the same manner as a plaintiff would prove any other civil case." Hazle, 464 Mich at 462. In retaliation cases, direct evidence "establishes without resort to an inference that an employer's decision to take an adverse employment action was at least in part retaliatory." Cuddington v United Health Servs, Inc, 298 Mich App 264, 276; 826 NW2d 519 (2012).
"Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer's unlawful motivation to show that a causal link exists . . . ." Debano-Griffin, 493 Mich at 176. In such a case, we apply the burden-shifting framework set forth in McDonnell Douglas. Debano-Griffin, 493 Mich at 176. We have already explained the burden-shifting framework in discussing the principles governing a discrimination case.
C. APPELLATE ARGUMENTS AND DISCUSSION
1. TUDOR'S ARGUMENTS
Leading into her age-discrimination argument on appeal, Tudor begins by describing the trial court's ruling, observing as follows:
The trial court found that Plaintiff did not have sufficient evidence to establish an "adverse employment act" for purposes of both her age discrimination and retaliation claims, and dismissed both claims on that basis. In doing so, the trial court erred. Plaintiff's being suspended for almost six weeks and then being constructively discharged are both adverse employment acts sufficient to make out a prima facie case.We note that this is not an accurate characterization of the court's ruling because, as discussed earlier, the court concluded that the decision to give the new pretrial manager position to the younger Hartz in 2016 instead of Tudor qualified as an adverse employment action.
Tudor later correctly acknowledges the trial court's ruling regarding the pretrial manager position.
Tudor argues that she is a member of a protected class, being 49 years old at the time that her employment ended. Tudor then contends that her deposition testimony and the affidavit of Julie Szymanski, a former co-worker, established that Caskey "demonstrated a preference for the company of younger persons[,]" which is "enough for a jury to be able to conclude that Caskey had a predisposition to discriminate against older persons." And, Tudor continues, she was constructively discharged and then replaced by a substantially younger person, Lori George, who was at least eight years younger than Tudor, thereby giving rise to an inference of age discrimination. Tudor next maintains that there was clear evidence that she was constructively discharged following her suspension. Tudor recounts the events involving her Loudermill attorney and what he learned after speaking to HR. Tudor further indicates that counsel's disclosures about the 30-minute time limit at the scheduled Loudermill hearing and the predetermination that Tudor would likely be fired have to be viewed in context, taking into consideration more than three years of oppressive treatment by Caskey. Tudor claims that the constructive discharge amounted to an adverse employment action.
In addition, Tudor adamantly argues that her suspension constituted an adverse employment action, disagreeing with the trial court's conclusion that the suspension was not an adverse employment action because it did not lead to a materially adverse consequence such as reduced pay or a demotion. Tudor appears to also contend that being given the job-performance report by Caskey was an adverse employment action. Tudor maintains that defendants did not proffer a legitimate, nondiscriminatory reason for the constructive discharge, instead arguing that she simply resigned. Therefore, according to Tudor, her prima facie case was not rebutted, and there was an inference of discrimination that should be sent to a jury. Tudor asserts that even if there were legitimate, nondiscriminatory reasons for the suspension and constructive discharge, there was ample evidence of pretext, including Tudor's affidavit that refuted all but one of Caskey's claims of errors, deficiencies, and other violations referenced in the job-performance report.
With respect to her retaliation claim, Tudor argues that she engaged in protected conduct by communicating complaints of discrimination in 2016 and 2017 to HR. Tudor asserts that as a result of the complaints, she suffered adverse employment actions when she was suspended and then constructively discharged from her job. Tudor also contends that the required proof of a causal connection between the protected conduct and the adverse employment actions was established by the close temporal proximity between voicing complaints of discrimination to Bruzzese on March 22, 2017, and then being suspended the very next day by Caskey after Bruzzese had spoken to Caskey. Tudor further maintains that there was evidence of pretext in light of Caskey's attempt to distort the chronology of events on March 22 and 23, 2017. This led to Tudor's suspension and Caskey's investigation, where Caskey's testimony was inconsistent with other evidence, including Bruzzese's assertions.
2. DEFENDANTS' ARGUMENTS
Defendants argue that Tudor failed to plead or prove that age was a motivating factor behind the various actions taken by defendants and alluded to by Tudor in her complaint. Defendants also maintain that there was no evidence of unfair, unequal, or preferential treatment. Defendants further assert that Tudor presented no evidence to rebut defendants' legitimate, nondiscriminatory reasons for their various actions. Defendants contend that there was "no evidence of any adverse action" taken against Tudor and that she was unable "to demonstrate an adverse employment action," thereby foreclosing any relief under the CRA for age discrimination. Additionally, defendants argue that Tudor presented no evidence to support a finding of constructive discharge and that Tudor voluntarily ended her employment. With respect to constructive discharge, defendants claim that it was necessary for Tudor to show that defendants had deliberately created intolerable working conditions, as perceived by a reasonable person, and that defendants did so in an effort to get Tudor to quit. According to defendants, no such evidence was produced. Defendants maintain that Tudor's "subjective belief that the disciplinary process was flawed or discriminatory is insufficient to demonstrate that it was an adverse action, absent objective evidence demonstrating this."
With respect to the claim of retaliation, defendants contend that there was no evidence of any adverse employment action, that defendants supplied legitimate, nondiscriminatory reasons for their actions, that a temporal relationship between protected activity and an employment action, standing alone, cannot establish the required causal connection, and that employer investigations do not constitute adverse employment actions. Finally, defendants argue that Caskey's decision to suspend Tudor did not reflect retaliation for Tudor's discrimination complaints considering that Caskey was merely acting in response to the probation supervisor's criticism of Tudor's job performance.
In the probation supervisor's affidavit, she averred that she had contacted Caskey on March 23, 2017, regarding information that she "needed on a file pending in the Circuit Court." The probation supervisor also averred, "I made that call because I had previously attempted to obtain the information but was unable to contact [Tudor]." This is the full substantive extent of the affidavit.
3. DISCUSSION
In this case and in our view, the parties do not devote enough attention to the matters the trial court actually reached and decided. The trial court focused almost exclusively on whether Tudor was subjected to an adverse employment action, rejecting all but one of the numerous instances or incidents that Tudor alleged constituted an adverse employment action. With respect to the occurrences that the trial court found did not amount to adverse employment actions, the court did not truly delve into whether they were motivated by discriminatory or retaliatory animus, whether there were legitimate, nondiscriminatory reasons for the occurrences, or whether any such reasons were pretextual. It was unnecessary for the trial court to discuss those issues because absent an adverse employment action, causes of action for age discrimination and retaliation cannot succeed. See Hazle, 464 Mich at 462-463; Meyer, 242 Mich App at 568-569.
But as noted earlier, the trial court did state in its written opinion and order that "[a]lthough the evidence is not clear and unequivocal, when viewing it as a whole in the light most favorable to Tudor, reasonable minds could differ regarding whether Caskey treated Tudor differently and whether that difference was based on her age."
The trial court determined that the only adverse employment action was defendants' decision to give a newly-created position to Hartz instead of promoting Tudor to the job. The court, however, jettisoned any claim of age discrimination or retaliation based on the denial of the job promotion because defendants proffered a legitimate, nondiscriminatory reason for selecting Hartz for the position, i.e., Hartz had the highest score on consideration of the hiring criteria, and Tudor failed to present evidence that the reason was pretextual. On appeal, Tudor does not challenge the trial court's reasoning for rejecting the discrimination and retaliation claims premised on the lost job opportunity. Therefore, we shall not explore whether the decision to award the position to Hartz supported a discrimination or retaliation claim.
The only occurrences or instances that Tudor claims on appeal constituted adverse employment actions are the suspension and the purported constructive discharge. An adverse employment action is an employment decision that is materially adverse in that it is more than a mere inconvenience or alteration of job responsibilities. Taylor Sch Dist v Rhatigan, 318 Mich App 617, 638; 900 NW2d 699 (2016). There must be an objective basis for demonstrating that a change was adverse. Id. A party's subjective impressions with respect to the desirability of one position over another do not control. Id. While there is no exhaustive list of adverse employment actions, they typically take the form of an ultimate employment decision, such as termination from employment or a demotion evidenced by a decrease in pay, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or by other indices that are unique to a particular situation. Id. at 638-639. The determination of what constitutes an adverse employment action is judged on a case-by-case basis. Id. at 639. The determination will vary according to the particular circumstances of each case. Id.
We first hold that Tudor's suspension or placement on administrative leave did not constitute an adverse employment action because she was paid during the suspension or leave. Circuits of the United States Court of Appeals that have addressed the issue, including the Sixth Circuit, have unanimously held that placing an employee on paid administrative leave does not constitute an adverse employment action. Jones v Southeastern Pennsylvania Transp Auth, 796 F3d 323, 326 (CA 3, 2015); Michael v Caterpillar Fin Servs Corp, 496 F3d 584, 594 (CA 6, 2007). Tudor fails to cite any relevant authorities to the contrary or engage in an adequate legal analysis on the subject.
The formal written notice from Caskey to Tudor informed her that she was "being placed on paid administrative leave pending an investigation."
"What constitutes an adverse employment action has received considerable attention by both state and federal courts applying either the CRA or its federal counterpart, Title VII of the Civil Rights Act." Pena v Ingham Co Rd Comm, 255 Mich App 299, 311; 660 NW2d 351 (2003). "It is well-settled that when the language of the CRA and Title VII are substantially similar, our courts consider federal case law interpreting Title VII to be persuasive, albeit not binding, authority on issues brought under the CRA." Id. at 311 n 3.
The question becomes whether a constructive discharge, assuming one occurred, constitutes an adverse employment action. In and of itself, constructive discharge is not a cause of action; rather, it is a defense against an argument that no action should lie because the plaintiff voluntarily left a job. Jewett v Mesick Consolidated Sch Dist, ___ Mich App ___, ___; ___ NW2d ___ (2020); slip op at 5. A constructive discharge occurs when an employer deliberately makes an employee's working conditions so intolerable that the employee is forced to involuntarily resign or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the shoes of the employee would feel compelled to resign. Id. "Where reasonable persons could reach different conclusions regarding whether these elements are established, the issue becomes a question of fact for the jury and not one properly decided by the trial court." Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 488; 516 NW2d 102 (1994).
In Champion v Nationwide Security, Inc, 450 Mich 702, 710; 545 NW2d 596 (1996), overruled in part on other grounds by Hamed v Wayne Co, 490 Mich 1; 803 NW2d 237 (2011), our Supreme Court observed:
It is well established that the law does not differentiate between employees who are actually discharged and those who are constructively discharged. In other words, once individuals establish their constructive discharge, they are treated as if their employer had actually fired them. The decision to terminate in a constructive discharge case, therefore, is imputed to the employer. [Citation omitted.]And there can be no dispute that firing an employee constitutes an adverse employment action. See Taylor Sch Dist, 318 Mich App at 638. "Michigan law recognizes constructive discharge as an adverse employment action." Agnew v BASF Corp, 286 F3d 307, 309 (CA 6, 2002), citing Champion, 450 Mich 702. See also Newbury v City of Windcrest, Texas, 991 F3d 672, ___ (CA 5, 2021) ("Constructive discharge is an adverse employment action[.]"); Chapin v Fort-Rohr Motors, Inc, 621 F3d 673, 679 (CA 7, 2010) ("A constructive discharge constitutes an adverse employment action."); Strickland v United Parcel Serv, Inc, 555 F3d 1224, 1230 n 4 (CA 10, 2009) ("constructive discharge is an adverse employment action").
Finally, we conclude that there is a genuine issue of material fact regarding whether Tudor was constructively discharged. Viewed in a light most favorable to Tudor, we note her deposition testimony revealed numerous instances where a reasonable juror could construe the conduct Caskey directed at Tudor as creating a difficult, unpleasant, and intolerable work environment for Tudor. Further, Tudor's affidavit indicated that Caskey's job-performance report was "full of erroneous misstatements of fact and misstatements of policy and procedure." Accepting this characterization as true for purposes of the (C)(10) motion, we agree it would suggest that Caskey's investigation and the job-performance report were a sham intended to harm Tudor, and which would certainly support a conclusion that Tudor was trapped in and subject to a difficult, unpleasant, and intolerable work environment. Furthermore, Tudor submitted the affidavit of a former co-worker who averred that Caskey "treat[ed] older workers coldly" and "was dismissive" of them. Additionally, Tudor's suspension, which could be viewed as an overreaction to the probation supervisor's inability to reach Tudor, came the day after Tudor complained to Bruzzese about Caskey's conduct. And a reasonable juror might therefore deem the suspension retaliatory, thereby adding to the difficult, unpleasant, and intolerable work environment. We also once again point out that the trial court itself believed that reasonable minds could differ with respect to whether Caskey discriminated against Tudor. Finally, in the affidavit of Tudor's Loudermill attorney, he averred that to the best of his recollection, an HR agent told him "that no matter what happened in the Loudermill hearing, Ms. Tudor was likely to be fired from her job." Considering this statement not for the truth of the matter asserted but for the effect on the hearer, we agree a reasonable person in Tudor's shoes may have felt compelled to resign to avoid being fired. See MRE 801(c); People v Fisher, 449 Mich 441, 449-450; 537 NW2d 577 (1995) (statements may be admitted to show the effect on the hearer or reader when the effect is relevant, and the policies underlying the hearsay rule are inapplicable because the statements are not being admitted to prove the truth of the matters asserted).
For example, Tudor testified:
I went to Barb[] [Caskey's] office that following morning. Barb had the three of us go and sit and talk. I was told and yelled at by Barb Caskey, number one, yelled at by her for a significant amount of time in front of Taylor behind closed doors that co-workers outside the office heard.
To be clear, we are not ruling that Tudor's Loudermill attorney cannot testify to the communications from HR to prove the truth of the matters asserted. We simply decline to rule on the matter, leaving that issue for possible future development and arguments under the hearsay rule and its exceptions, along with any other rules of evidence.
III. CONCLUSION
In sum, we hold that a genuine issue of material fact exists with respect to whether Tudor suffered an adverse employment action in the form of a constructive discharge. Accordingly, the trial court erred in summarily dismissing Tudor's lawsuit on the basis that there was no adverse employment action, aside from the job-promotion denial, which the court rejected on other grounds not challenged on appeal.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, Tudor may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Brock A. Swartzle